Civility

I’ve done some research on the day’s origins. Meaning, I read this and this. While each suggests we might debate the motivation behind the creation, #bekindtolawyersday is legit trending on social media. So, it must be a real day.

Who is most likely to deal with a lawyer today? Other lawyers. Thus, to borrow a quote from JFK, here’s my request of my lawyer-readers:

Ask not who will be kind to you today. Ask to whom you will be kind.

I’ve often mentioned that the Rules of Professional Conduct don’t require lawyers to be nice.

Still, why not try?

Indeed, as I mentioned here, I recently did a CLE on attorney wellness that segued into a discussion on whether a lack of civility within the profession contributes to the profession’s lack of wellness.

“Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

Not too long ago, I’d often use the Was That Wrong?trope to highlight outrageous attorney misconduct.

This story gets its own post.

Yesterday, the New York Supreme Court, Appellate Division, First Judicial Department suspended a lawyer’s license for 4 months. The lawyer’s violations included telling an unrepresented opposing litigant “you’re one of those people in the world that really should just kill themselves because you’re worthless.” Above The Law, the New York Law Journal, and the New York Post reported the decision, which is here.

The lawyer’s misconduct involved two different matters. In the first, and per the decision, the lawyer entered an arbitration, took pictures of a witness who was testifying, and said to the witness:

“This will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourselves for kicking people out of a building and you have to live with yourself.”

The second matter? Well, I’m not sure you’d believe me. So, I’ll quote from the decision:

“In the second matter, respondent’s firm represented the owner of several residential buildings. A resident of one of these buildings, James Dawson, allegedly made postings to a website accusing the owner of overcharging tenants. Respondent sent a letter to Dawson dated September 7, 2016, accusing him of creating a false and defamatory website and demanding that he take it down or face a lawsuit. Respondent received no response to this letter.

On September 13, 2016, respondent sent Dawson a text message which read, in relevant part:

‘We are filing a lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website. . . . We are also in contact with the location [sic] police station and we have a copy of the complaint your ex-girlfriend filed against you and we will be using all means necessary to protect our clients.’

Later on the same day, respondent telephoned Dawson, who recorded the conversation. Respondent told Dawson, inter alia, that Dawson was ‘not that bright,’ and that, if he did not take the website down, he would ‘be bankrupt soon.’ Respondent told Dawson that he ‘should commit suicide. . . . [y]ou’re one of those people in the world that really should just kill themselves because you’re worthless.’ While still on the phone with Dawson, respondent said to a person in his office about Dawson ‘start the lawsuit. . . . I need him arrested. . . . I gotta get this guy. He’s gotta be arrested.’ Respondent told Dawson that respondent’s employee who would be ‘running the investigation’ of Dawson ‘used to run the district attorney’s office,’ and claimed that respondent’s office was ‘in contact’ with the District Attorney’s office. He told Dawson, ‘[y]ou have no idea what you stepped into. . . . Welcome to my world. Now you’re my bitch. . . . you’re gonna be paying for this heavily for the rest of your life.'”

In case you still don’t believe it, the recording of the conversation is here.

This story reminds me of a conversation that broke out during a CLE I did at the VBA Mid-Year Meeting; a conversation that prompted me to suggest: be nice to someone today. This is but another reminder.

I posted the year’s most-read blog in July. Ever since, it has remained popular, and about the only post that people mention to me in person. Without further adieu, the post that readers read more than any other in 2017 was a post on civility: W.I.N. Your 3 Feet of Influence.

Remember: you have a chance to “WIN” every interaction you have. At work, at home, everywhere you go. The more interactions you “WIN,” the better we’ll all be.

Thank you for reading this year. I wish you a peaceful 2018!

And don’t forget that tomorrow is Friday. Which means there’s one final #fiveforfriday quiz in 2017. Get in the game!

When I was coaching, I used the term “W.I.N.” wth my teams. It stands for “what’s important now?” Here’s what it means.

In sports, as in life, we can only control what we can control.

Basketball players can’t control a ref’s calls. But they can control how they react to bad calls. A player can’t control (or change) the fact that he just made a bad play. But he can control how he approaches the next play. A player can’t control whether a teammate works hard in drills. But he can control his own effort.

What’s Important Now is controlling whatever you can control . . . right now. In basketball, that means, playing the next play without worrying about the last or looking forward to one later in the game.

Bad call goes against you? Yelling at the ref is not what’s important now. What’s important now? The next play. Make a bad turnover? Hanging your head is not what’s important now. What’s important now? Sprinting back on defense to stop the opponent who stole your pass.

It reminded me of W.I.N? None of us can control how others act or treat us. But every single one of us can control our response to how others act and treat us. And isn’t that almost always what’s important now?

As I thought about it, I thought back to my post President’s Day & Civility. It’s a post in which I referred to Linda Klein’s President’s Message in the February edition of the ABA Journal: One Word: Civility. Please read it.

President Klein wrote:

“As leaders in society, lawyers must ensure that civility once again becomes a quality that defines us. We need to set the tone for constructive communication and rational decision-making. It starts with us and every individual committing to a more civil manner, insisting that civility be a part of meetings and interactions. Indeed, we need to hold ourselves and our leaders to a higher standard.”

What’s Important Now? That in the next interaction I have with someone, I’m going to commit to a civil, honest, respectful communication – – regardless of how that person treats me. I can’t control how that person acts, but I can control how I act.

Opposing counsel acts like a jerk on the phone, sends a rude e-mail, or says bad things about you in court? You can’t control that. But you can absolutely control how you respond.

Finally, I’m especially struck by the fact that I’m writing this as I proctor the bar exam. Civility is as important a skill as is a basic knowledge of evidence, contracts, or civil procedure. As much as I hope that each examinee passes the exam, I’m as hopeful that, upon admission, each practices law by continually striving to W.I.N. his or her 3 feet of influence. It would make the profession better and serve as an example to all.

On Presidents’ Day, I thought I’d share a message from Linda Klein. Attorney Klein is the current President of the American Bar Association. Her words are far better than any summary I could deliver. So, please read Attorney Klein’s President’s Message from the February edition of the ABA Journal.

“The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

Finally, as a reminder, the Vermont Bar Association adopted Guidelines of Professional Courtesy in 1989. Here they are:

Guidelines of Professional Courtesy

In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.

A lawyer should act with candor, diligence and utmost respect.

A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.

A lawyer should act with personal dignity and professional integrity.

Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.

A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.

In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanortowards opposing lawyers.

A lawyer should not harass opposing counsel or counsel’s clients.

Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.

If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.

Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.